Appeal Court Upholds Ruling Against The Use Of Blood Test

July 25, 1985|by DEBBIE GARLICKI, The Morning Call

The state Superior Court has upheld a ruling by a Lehigh County judge who said results of a blood test could not be used as evidence in the trial of a Coopersburg area truck driver charged with drunken driving.

In January 1984, Judge James Knoll Gardner found in favor of Joseph E. Koebach. His attorney, Robert J. Magee, requested the blood sample for independent testing but found it had been destroyed.

The state police crime lab at Bethlehem used a gas chromatograph to find Koebach's blood alcohol level was 0.16 after he was arrested on June 24, 1983.

District Attorney William Platt said the sample was destroyed bythe state police crime lab five months later to make room for newer samples of blood in the lab's freezer.

Former Assistant District Attorney Ann Keck did not know that the sample had been destroyed until January 1984, when she called the lab to arrange for testing of the sample by the defense.

Magee asked for the sample before it was destroyed, Platt said, but the lab did not know of the request, and Keck did not know of the lab's policy on destroying samples.

In appealing to the Superior Court, Platt said Koebach's rights had not been violated when the commonwealth did not preserve the sample of his blood.

Platt cited a U.S. Supreme Court case, decided after Gardner's opinion was issued, in which the high court held that a state is not required to preserve evidence that could clear a defendant of guilt.

The Supreme Court ruled that law enforcement officials were not required to preserve breath samples of drunken driving suspects for possible retesting by defense experts.

The Superior Court said that case was different than Koebach's because in the Lehigh County case, the defense "merely requested from the commonwealth a blood sample, which was still in existence and which was already in a state of preservation."

"No positive steps were required to have been taken by the commonwealth; it was merely requesting that the sample be given to the defense rather than be destroyed," the court said.

The commonwealth has applied for reargument by the Superior Court, saying the court "failed to properly apply the decision" of the Supreme Court.

Destruction of the sample was not done "in bad faith," Platt said, but "as a matter of routine."

Prohibiting the prosecution from using the results of the blood test creates a "windfall" for Koebach, he said.

Magee rejected that argument, adding Koebach still could be prosecuted for driving while under the influence of alcohol to a degree that rendered him incapable of safe driving.